[This is based on the version of the article
on my hard disk, and so may differ in detail from the published
version. It is published here with the permission of the
University of Chicago Roundtable, where it originally
appeared.]

Making Sense of English Law Enforcement
in the 18th Century

David Friedman

The criminal justice system of England in the 18th
century presents a curious spectacle to an observer more familiar
with modern institutions. The two most striking anomalies are the
institutions for prosecuting offenders and the range of punishments.
Prosecution of almost all criminal offenses was private, usually by
the victim. Intermediate punishments for serious offenses were
strikingly absent. It is only a slight exaggeration to say that, in
the early years of the century, English courts imposed only two
sentences on convicted felons. Either they turned them loose or they
hanged them.[1]

Parts I and II of this essay describe the
institutions for prosecution and the forms of punishment. In parts
III, IV and V I argue that, contrary to the view of almost all modern
commentators and many contemporary ones, these institutions may have
made considerable sense. The shift in the early 19th century towards
punishment by imprisonment and law enforcement by paid police, and
the later shift to public prosecution, were driven by discontent with
the performance of the existing institutions. But it is far from
clear whether that discontent was justified. I will argue that both
contemporary critics and modern historians have missed important
elements in the logic of the system of private prosecution, elements
that help explain why it lasted as long as it did and worked as well
as it did.

Part I: The Private Prosecution of
Crime

England in the 18th century had no public
officials corresponding to either police or district attorneys.
Constables were unpaid and played only a minor role in law
enforcement. A victim of crime who wanted a constable to undertake
any substantial effort in order to apprehend the perpetrator was
expected to pay the expenses of doing so. Attempts to create public
prosecutors failed in 1855 and again in 1871; when the office of
Director of Public Prosecution was finally established in 1879, its
responsibilities were very much less than those of an American
district attorney, now or then. In 18th century England a system of
professional police and prosecutors, government paid and appointed,
was viewed as potentially tyranical and, worse still,
French.

Under English law, any Englishman could prosecute
any crime. In practice, the prosecutor was usually the victim. It was
up to him to file charges with the local magistrate, present evidence
to the grand jury, and, if the grand jury found a true bill, provide
evidence for the trial.[2]

In some ways, their system for criminal
prosecution was similar to our system of civil prosecution. Under
both, it is the victim who ordinarily initiates and controls the
process by which the offender is brought to justice. There is,
however, at least one major difference between the two systems. If
the victim of a tort succeeds in winning his case, the tortfeasor is
required to pay him damages. If the victim of a crime won his case,
the criminal was hanged, transported, or possibly pardoned. The
damage payment in civil law provides the victim with an incentive to
sue. There seems to be no corresponding incentive under the 18th
century system of private criminal prosecution.

Modern historians were not the first to notice
this problem. One of the central concerns of 18th century legal
writers was the difficulty of inducing people to prosecute. One
solution was to establish substantial rewards for the conviction of
criminals charged with particularly serious crimes.[3]
This solution led to new difficulties. In some cases, it was alleged
that the accused were framed for offenses that had never
occurred.[4]
Other cases were said to be the result of entrapment; the
perpetrators were persuaded to commit the crimes by confederates
whose real purpose was to betray them for the reward.[5]

A further problem was the effect that the
existence of rewards might have on the attitude of the jury. Jurors
knew that the witnesses expected to share in the reward from
conviction-and discounted their testimony accordingly. Perhaps
because of such problems, the system of rewards was largely abandoned
in the early 1750's. It was replaced in 1752 by a provision
permitting the court to reimburse prosecutors, especially poor
prosecutors, for the expenses of prosecution.[6]
While such reimbursement reduced the disincentive to prosecute, it
did not eliminate it. Expenses were not always reimbursed, or
reimbursed in full, even when the defendant was convicted-and not all
defendants were convicted. Not until 1778 did it became possible for
a prosecutor to be reimbursed for an unsuccessful
prosecution.

Dissatisfaction with the perceived problems of
private prosecution, and concerns with what was perceived as a high
and rising crime rate, eventually led to the introduction of full
scale paid police forces, first in London in 1829 and later elsewhere
in England.[7]
The police took over from the private prosecutors much of the cost of
locating and convicting criminals. As the century passed, the police
also took over much of the job of prosecuting criminals. The result,
by the end of the century, was a system where prosecution was still
for the most part nominally private, but where the private prosecutor
was usually a police officer.

It is easy enough now, it was easy enough then, to
see why a system of private prosecution could not work. The puzzle is
that it did work. Whether it worked better or worse than alternative
institutions is not clear. But we know that, during the 18th century,
quite a lot of English criminals were charged, prosecuted, and
convicted. We know that, while property may not have been as secure
as its owners wished, it was sufficiently secure to permit a
flourishing economy and an impressive amount of economic growth. In
part III of this article, I suggest a solution to that
puzzle.

Part II: Punishment at the
Extremes

Offenses fell into three categories according to
their possible punishments: minor offenses, clergyable felonies, and
non-clergyable felonies. Minor offenses such as petty larceny-theft
of goods worth less than a shilling-were typically punished with
punishments designed largely to shame the offender, such as public
whipping or exposure in the stocks.[8]

The distinction
between the second and third categories was whether or not offenders
could claim benefit of clergy. Benefit of clergy originated as a
legal rule permitting clerics charged with capital offenses to have
their cases transferred to a church court, which did not impose
capital punishment. By the 18th century, the application of the rule
had changed in two important ways: The definition of clergy had been
broadened to include anyone who could read (and, after 1706, any
defendant whether or not he could read), and the church courts had
lost their role in dealing with serious crimes.[9]
The result in many cases was that a defendant convicted of a capital
felony could plead his clergy, be branded on the thumb, and be sent
home.

Under a Tudor statute, a defendant who pled his
clergy could be imprisoned for up to a year. But that appears to have
been done only rarely.[10]
Defendants who were not actually clergymen were supposed to be
allowed to plead clergy only once; branding on the thumb may have
originated as a device to identify those who had pled clergy once and
so could not do so again. But this restriction does not seem to have
been enforced very often. Presumably the brand had some stigmatizing
effect. That, plus the costs born by the defendant prior to his
conviction,[11]
seem to have been at some periods the only penalty actually imposed
on someone convicted of a clergyable offense.[12]

Clergyable offenses were offenses for which,
absent privilege of clergy, the punishment was death. They were
therefore generally serious offenses. Manslaughter, for example, was
a clergyable felony. And the definition of manslaughter included many
offenses that we would define as murder. A killing in a tavern brawl,
even one done with a deadly weapon, was manslaughter as long as there
was no evidence of premeditation or previous enmity. The killer was
allowed to plead his clergy, branded on the thumb, and
released.

Along with the broadening of the class of
defendants permitted benefit of clergy came a narrowing of the range
of clergyable offenses. Under the Tudors, a variety of serious
offenses[13]
were made non-clergyable. Starting in the late seventeenth century,
many more were added.[14]
The result was a legal system in which the only punishment for some
capital offenses was a branded thumb, while for many others the only
punishment a judge could impose was hanging.

While hanging was, during much of the century, the
only punishment that a judge could impose for serious non-clergyable
felonies, that did not mean that everyone charged with such a felony,
or even everyone charged and guilty, was actually hanged. A
substantial fraction of defendants were acquitted. Of those
convicted, many were convicted of a lesser offense. A jury might find
a defendant guilty of an offense that was punishable by whipping or
the pillory either in order to keep the offender from pleading his
clergy and being released or to prevent him from being convicted of a
capital offense and hanged. After 1717, they might find him guilty of
a clergyable rather than a non-clergyable felony in order to convert
the punishment from hanging to transportation.

In some cases the verdict was clearly an act of
"pious perjury" by the jury. The fiction was clear when a jury found
a defendant guilty of stealing from a house goods of value 39
shillings, although the goods were obviously worth much more than
that; 40 shillings was the value that would make the theft
non-clergyable.[15]
In other cases, the jury failed to include in its verdict features of
the crime, such as the fact that the theft was from a house at night
or involved breaking and entering, that would have made it
non-clergyable. The combined effect of acquittals and convictions for
a lesser (non-capital) offense was that, in the sample examined by
Beattie,[16]
fewer than 40% of those charged with capital property felonies and
fewer than 25% of those charged with murder were actually convicted
of those offenses.

Even conviction did not necessarily, or even
usually, result in hanging. It was quite common for a defendant to be
convicted and then pardoned. In some cases the reason was that the
judge disagreed with the jury's verdict and recommended a pardon in
order to avoid the execution of an innocent person. In many other
cases, the pardon was the result of petitions by the convicted
defendant's relatives, friends, employer, and anyone else willing to
petition the crown on his behalf.

Some pardons resulted in the convict going free;
many others were a device for substituting a lesser but still serious
punishment. The convicted criminal was pardoned conditional on his
agreeing to be transported. Of those convicted of capital felonies in
Beattie's sample, only about 40% were hanged. Most of the rest were
either pardoned and released or pardoned and transported; some were
pardoned on condition that they agree to enlist in the army or navy.
Multiplying the fraction of those indicted for capital offenses who
were convicted of them by the fraction of those convicted who were
hanged, the fraction of defendants charged with a capital felony who
were actually hanged was less than 16%.

Large scale use of transportation as a criminal
punishment began about 1663. It was imposed both on defendants
convicted of capital non-clergyable felonies and pardoned on
condition of transportation and on some defendants convicted of
clergyable felonies. A judge who wished to transport such a felon
could choose to test the literacy requirement strictly and find that
the defendant was not literate and thus not entitled to benefit of
clergy or, if the defendant was already branded for a previous
offense, the judge could enforce the rule forbidding non-clerics to
plead clergy more than once.

Transportation was by private merchants. A
merchant who wished to transport a felon was required to pay the
sheriff "a price per head that included jail fees, the fees of the
clerk of the appropriate court, fees for drawing up the pardon, and
so on" (Beattie p. 479). After transporting the felon to the New
World, the merchant could sell him into indentured servitude for a
term depending on his offense. This was a profitable transaction if
the felon was young and healthy or had useful skills. But many felons
did not bring enough return to pay the merchant's cost. The result
was that felons who had been sentenced to transportation but whom
nobody was willing to transport accumulated in jails intended as
temporary holding places.

Another problem was with the colonies to which the
felons were sent; in the 1670's both Virginia and Maryland passed
laws prohibiting transportation. Beattie concludes that
"transportation to the mainland colonies was being seriously
curtailed by the 1670's."[17]
While some transportation continued, it seems to have become an
uncommon punishment by the end of the seventeenth century.

The second period of transportation began in 1718.
This time the government made no attempt to charge merchants for the
privilege of transporting convicted felons. Instead, the merchants
were offered a subsidy of 3[[sterling]] per
transportee. On those terms transportation was profitable. The system
was continued until the American Revolution removed most of the
places to which transportees were being sent from the authority of
the crown.[18]

After 1776, a variety of temporary measures were
used to deal with prisoners who would otherwise have been
transported. Some, confined in hulks moored in the Thames, were used
as convict labor for work on improving the river. Others were held in
jails. None of these expedients proved satisfactory, and they were
eventually replaced by transportation to Australia. At about the same
time, there were attempts to expand and regularize the use of
long-term imprisonment. While initially frustrated by the
unwillingness of local governments to build the necessary facilities,
such attempts were ultimately successful.

Despite complications, the overall picture of
punishment for serious offenses is fairly simple. For clergyable
felonies, the convicted offender was either branded on the thumb and
sent home or (especially after 1718) transported. For non-clergyable
capital offenses, of which there were a great many, the convicted
offender was either pardoned, pardoned and transported, or hanged.
Jails were used to confine defendants awaiting trial or convicts
awaiting punishment.[19]
Occasionally something went wrong with the system and convicted
prisoners started to accumulate in the jail system. Towards the end
of the century, there were proposals to use confinement as a
punishment, and some efforts begun in that direction.

The puzzle here is the failure to use imprisonment
as an intermediate punishment. Its advantage is and was obvious-the
level of punishment can be continuously adjusted to fit what the
convict is thought to deserve. Imprisonment was not a novel idea-it
existed in statute, had been used to a significant degree in the
past, especially by church courts, and was in regular use in
France.

Part III: The
Logic of Private Enforcement

Despite its apparent difficulties, private
enforcement of criminal law seems to have been a reasonably
successful system. While contemporaries, then as now, worried about
rising crime rates, there seems to be little evidence that crime
rates were actually rising. Beattie's figures, based on homicide
indictments per capita, suggest that rural homicide rates fell more
than four fold, and urban about nine fold, between 1660 and 1800.
Combining that information with data for the 19th
century,[20]
it seems likely that much, perhaps most, of the drop in the crime
rate between 1660 and 1900 occurred prior to the introduction of paid
police.

Such conclusions must be qualified by the fact
that the seventeenth and eighteenth century data reflect homicide
indictments, not homicides. If the fraction of homicides resulting in
indictments felt sharply from 1660 to 1800, that could explain the
data without any decrease in the murder rate. But there seems to be
no evidence for a decline on that scale. Beattie concludes that while
some of the decline in the indictment rate may reflect a change in
what events were prosecuted as homicide, at least some is due to a
real drop in the murder rate.[21]

I believe that the success of the system may may
have been due, at least in part, to two features that have been noted
by historians but not properly appreciated. One was the production of
deterrence as a private good. The other was the use of
compounding-out of court settlement of criminal charges-to reward
private prosecutors at the expense of accused criminals.

Deterrence as a Private Good

Consider the situation from the viewpoint of a
potential victim of crime-say the owner of a warehouse containing
goods easily stolen and fenced. He would like potential thieves to
believe that, if apprehended, they will be prosecuted to the full
extent of the law. But if he actually caught a thief, he would be
strongly tempted not to file charges. Carrying the case through as a
private prosecutor might cost a substantial amount-many times the
value of the goods stolen.[22]
The prosecutor not only had to pay legal fees, he also had to pay
transportation and lodging expenses for his witnesses to attend
court, often a distance of a day's travel or more from their homes. A
successful prosecutor might be reimbursed for expenses by the court,
but such reimbursement was unlikely to cover all
expenses.[23]
If the criminal was not caught in the act but had to be located and
apprehended before he was prosecuted, there would be additional
costs, possibly including the cost of advertising, and paying, a
reward. Potential victims wished potential criminals to be deterred;
the problem was that, in order to achieve that result, it had to be
in the interest of actual victims to apprehend and prosecute actual
criminals.

One solution was reputation. A merchant who
expected to be a frequent target of thefts might prosecute one thief
to assure others of his resolve. But most potential victims would be
lucky to catch one thief in a lifetime. How could they commit
themselves in advance, so that potential thieves would know they
would be prosecuted?

The solution was to create or join an association
for the prosecution of felons. Most such associations consisted of
between twenty and a hundred members, all living in the same general
area.[24]
Each member, on joining, contributed a fixed payment to a common
pool. The money was available to pay the cost of prosecuting a crime
committed against any member. The list of members was published in
the local newspaper.

Thousands of prosecution associations were
established in the 18th and early 19th century.[25]
I believe that their main function was not insurance, as some
historians have argued, but commitment. By joining such an
Association, a potential victim committed himself to prosecute. The
money had already been paid out.

Not everyone joined such associations; while it is
impossible to make any very exact estimates, members and their
households were surely a minority, quite possibly a small minority,
of the population. There were at least two different reasons not to
join, corresponding to two different groups of non-members. The first
consisted of potential victims for whom deterrence was already a
private good. Wealthy individuals, firms that were either large or
particularly subject to theft, were repeat players with an adequate
private incentive to follow through on their commitment to prosecute.
The second group consisted of those for whom private deterrence was
not worth its cost: potential victims whose expected costs of crime
were low enough to make the value of deterrence less than its cost,
including both the cost of prosecution and the administrative cost of
the association.[26]

Private deterrence provides one explanation for
why offenses were prosecuted, but it cannot be the full explanation.
Even a casual examination of surviving court records reveals many
cases where the prosecutor was neither associated with a prosecution
association, wealthy, nor representing a firm. What, in such cases,
was the incentive to prosecute?

One answer popular at the time was that
prosecutors were motivated by a desire for vengeance. Another
possible answer is that prosecution was sometimes a necessary step
towards recovering stolen property.[27]
Another is that prosecutors began prosecutions in the hope of being
paid not to complete them.

In Defense of Compounding
Felonies

One way of resolving a civil suit is by an out of
court settlement. The equivalent in a system of private enforcement
of criminal law is is for the prosecutor to compound the offense-to
agree, in exchange for some sort of compensation, not to press
charges. Compounding a misdemeanor was legal in 18th century England.
Indeed, magistrates seem to have felt that part of their job was to
encourage private settlements between the offender and the injured
party, thus keeping disputes out of the courts. [28]

Compounding a felony was illegal; once a
prosecutor had filed his charges, he was supposed to carry the case
through to trial.[29]
It appears to have also been fairly common. One of the criticisms of
the system of private prosecution, especially during the nineteenth
century attempts to establish a system of public prosecutors, was
that many cases were dropped because of agreements between the
prosecutor and the defendant.[30]

What both modern and contemporary commentators
seem to have missed is that, however corrupt such arrangements might
be from a legal standpoint, they helped solve the fundamental problem
of private prosecution. The possibility of compounding provided an
incentive to prosecute-it converted the system into something more
like a civil system, where a victim sues in the hope of collecting
money damages. And while compounding might save the criminal from the
noose, he did not get off scott free. He ended up paying, to the
prosecutor, what was in effect a fine.

Viewed from this standpoint, cases that actually
went to trial represent failures, not successes, of the system. As a
general rule, the loss to the criminal of being hanged or transported
was considerably greater than the resulting gain to the prosecutor.
Between the two values there was a bargaining range. Sometimes
bargaining would break down, perhaps because of differing opinions
concerning the probability of conviction or the assets available to
the defendant, perhaps due to mutual stubbornness in trying to get
the most favorable possible outcome. But under normal circumstances,
if my conjecture about how the system worked is correct, some payment
in cash or kind, offered by the defendant himself or others on his
behalf, would be agreed on.[31]
That payment would punish the defendant, compensate the victim
(assuming, as was usually the case, that the victim was the
prosecutor) and reward the act of prosecuting.

We do not know how common such arrangements were.
One study of eighteenth century cases found that "28 of the 227
prosecutors bound by recognizances to appear at the Essex quarter
sessions failed to bring an indictment, but only two had their
recognizances estreated."[32]
The fact that the penalty for a prosecutor who failed to indict was
rarely enforced is consistent with the view that compounding a felony
was a practical option for a prosecutor. The small percentage of
cases dropped, on the other hand, is evidence against the conjecture
I am offering. It does not, however, include either those prosecutors
who were bought off before filing charge or those who brought an
indictment, perhaps in order to avoid the risk of legal penalties for
not doing so, but deliberately lost the case.

One reason a case might go to trial was a
breakdown in bargaining; another was that the prosecutor's objective
was deterrence rather than compensation. Execution, or even
transportation, would impose a larger cost on most criminals than the
largest payment they could make, and thus provide more deterrence. A
prosecutor seeking deterrence, whether with his own money or as part
of an association, would have to trade off that benefit against the
benefit of receiving whatever the criminal was willing and able to
pay.

If my conjecture is correct, a common outcome
under this system was neither hanging nor transportation but a
fine-paid by the criminal to the prosecutor. One advantage of such
institutions, compared to either civil law or criminal fines, was
their superior flexibility. The fine was determined not by the
court's estimate of what the defendant owed or could pay but by
bargaining between the parties most immediately concerned. Defendants
might be less eager to appear judgement-proof if the consequence of
that status was being hanged.[33]

Controlling undesirable acts by treating them as
crimes under a system of private prosecution has another advantage
over the alternative approach of treating them as torts. For many
offenses, the victim is also the best witness. In a civil system,
where legal success produces a damage payment from tortfeasor to
victim, the victim has an incentive to perjure himself-a problem
familiar enough in modern tort law. A jury, recognizing that
incentive, may be sceptical of evidence offered by the plaintiff on
his own account or by witnesses provided by the plaintiff.

In a criminal system, the victim has little to
gain by perjury. Assuming that perjury has some costs, of conscience
or risk of detection, his testimony can be trusted.[34]
A victim who hopes to be paid to drop charges before the trial has an
incentive to threaten to perjure himself in order to secure a
conviction. But unless he has some way of committing himself to carry
out such a threat, it will not be believable. Paradoxically, the
result may be to make prosecution more profitable than it would be
under a civil system. If the case actually goes to trial the
prosecutor gets nothing, so the prosecutor's reservation price, the
lowest price at which settlement makes him better off than trial, is
lower than under a civil system. But the defendant's reservation
price, the highest amount he can pay and still be better off than if
the case is tried, will be higher under the criminal system, since
the greater credibility of prosecution testimony under such a system
makes conviction more likely. Furthermore such a system, by reducing
the victim's incentive to commit perjury, may do a better job than
would a civil system of distinguishing guilty from
innocent.

Concerns about the possibility of profitable
perjury, and the effect of that possibility on the willingness of
juries to believe witnesses, are not entirely theoretical, nor are
they based only on modern experience with plaintiffs who abandon
their wheelchairs immediately after being awarded large damage
payments for permanently disabling injuries. Such problems were
discussed in the 18th century in the context of rewards for the
conviction of criminals guilty of certain crimes. It was widely
believed that such rewards led both to entrapment and to attempts to
frame innocent parties, and that such concerns were reflected in jury
skepticism. Those were among the reasons for the partial abandonment,
in the middle of the century, of the system of public
rewards.[35]

The conjecture I have offered is relevant not only
to an explanation of why crimes were prosecuted, but also to another
issue raised in modern discussions of 18th century English law: its
relation to the system of class and authority. Some authors view the
law as a class neutral instrument, employed by rich and poor alike to
protect themselves against the small criminal
minority.[36]
Others argue that it was primarily a device by which the rich
protected themselves from the poor, or by which the ruling class
established and maintained its legitimacy.[37]

One argument for the latter view is that, in a
system of private prosecution, those with more resources are better
able to prosecute, and thus deter, crimes committed against
themselves. That is surely true to some extent, although writers on
the other side have offered evidence that many private prosecutors
were ordinary members of the working class. But what both sides have
missed is the tendency of the system to discriminate in favor of poor
criminals and against rich ones.

One reason to start a prosecution is in order to
be paid to drop it, a point familiar in discussions of malicious
prosecution.[38]
One implication is that the incentive to prosecute criminals is
greater the greater their ability to pay to have charges dropped. A
victim who catches an obviously penniless thief is probably best off
giving him a beating and turning him loose, or at most insisting on a
public apology. A victim who catches a well dressed thief has more to
gain by prosecuting. The eventual out of court settlement leaves the
thief better off than if he had been tried and convicted, but worse
off than if the victim had not bothered to prosecute because it was
not worth the cost.

There may have been other features of the legal
system that worked in the opposite direction, such as the likelihood
that middle class juries, chosen under a system in which jurors had
to meet a property qualification, would be more sympathetic to middle
class than to lower class defendants and interests. But that would
also have been true under a system of public prosecution. Private
prosecution added to the system an incentive for selective
prosecution of those who could pay to avoid the risk of
trial.[39]

One issue that a system of private prosecution
must deal with is the allocation of property rights to prosecute
particular offenses. This is not a problem if the only incentive is
deterrence-I would be happy to have you bear the cost of prosecuting,
and thus deterring, offenders who injure me. But it may be a problem
if the incentive for prosecution is the opportunity to collect a
reward or be paid to drop charges. It might also be a problem if one
possible prosecutor is an accessory of the criminal, who wishes to
control the prosecution in order to make sure that it
fails.[40]

Under the law as interpreted by the courts,
rewards did not raise this problem in any serious form. Since the
statute establishing the rewards was ambiguous as to who was entitled
to get them, their allocation was determined by the judge. The reward
was usually divided among a number of different people, including the
prosecutor, each of whom had had some hand in securing the
conviction.

In order to either obtain an out of court
settlement or protect a confederate, a prosecutor who drops charges
must be able to prevent another prosecutor from taking up the
case.[41]
A victim who was himself the chief witness, or who could control
other essential witnesses, was in a position to do so. Other
potential prosecutors were not. The only way they could provide the
offender reasonable security against prosecution was to carry the
process far enough forward to make the charges res adjudicata
and thus invoke the double jeopardy protection.[42]

That might be risky. Once a trial started, it was
controlled by the judge, not the prosecutor. And while the prosecutor
could bring witnesses in, he could not keep witnesses
out.[43]
So in a situation where two different people wanted to prosecute, it
is not clear to what degree the one who succeeded in being named
prosecutor could effectively exclude the other.

If two different people did wish to prosecute the
same offense, what would happen? One possibility is that the conflict
would be resolved by the magistrate. The usual first step of
prosecution, filing charges with the magistrate, required his
approval, although a prosecutor had the option of instead proceeding
directly to the grand jury. Another possibility is that the rule
"first in time, first in right" would have applied to such cases, as
it seems to have applied to the related case of informers entitled to
collect a share of the penalty prescribed under penal
statutes.[44]

Part IV: Punishment and Punishment
Cost

In analyzing the choice among alternative
punishments, a useful concept is punishment inefficiency: the ratio
of punishment cost to amount of punishment.[45]
A costlessly collected fine or damage payment has an inefficiency of
0; what one person loses another gets. Execution has an inefficiency
of about 1; the criminal loses his life and nobody gets
one.[46]
Imprisonment, as practiced in the U.S. at present, has an
inefficiency considerably greater than 1. The criminal loses his
liberty, nobody gets it, and the state must pay for the
prison.

One explanation for the pattern of criminal
punishments in 18th century England is that imprisonment was avoided
because it was too expensive. If this is correct, the later shift to
a system that made extensive use of imprisonment can be interpreted
as a consequence of economic growth. A punishment too costly for a
poor country might be appropriate for a rich one.

This conjecture suggests several questions. The
first is whether imprisonment in the 18th century was necessarily
more inefficient than execution. The answer is not immediately
obvious. A penal system that was willing to hang sheep stealers had
no moral qualms about setting them to hard labor instead. If the
output that could be extracted from prisoners was more than the cost
of guarding and maintaining them, then imprisonment, although still
less efficient than a fine, would be more efficient than
execution.

Apparently it was not. One piece of evidence is
the attempt to use prison labor for improvements on the Thames when
transportation was interrupted by the American revolution. The
conclusion of modern historians[47]
is that the value of the work done was much less than the cost of
maintaining the prisoners.

A more interesting attempt
occurred on the other side of the channel. French criminals sentenced
to the galleys became part of an elaborate system of state run
slavery.[48]
Until 1748 they were sent to the arsenal at Marsailles, where the
galley fleet was based. Those in sufficiently good condition were
assigned to galleys as rowers. The rest were used in the arsenal to
produce goods for government use under the direction of private
employers. The private employers paid a small wage to the galley
slaves, presumably for incentive purposes, and received a subsidy
from the state. According to Andrews, the system provided the state
with goods at below market prices.[49]

During the winter months the galleys were kept at
dock. Their oarsmen were rented out, with guards, to employers in
Marsailles. Other prisoners ran small businesses in shacks on the
dockside, paying off the officers of their galley with a share of the
profits.

In 1748, the galleys were abolished; the galley
slaves were shifted elsewhere, many to Brest, the chief base of the
Atlantic fleet. At Brest, an elaborate prison was constructed for the
galley slaves, implementing the latest ideas in 18th century
penology. Each slave worked eight days outside of the prison and
eight days in. The outside work was mostly heavy labor on behalf of
the fleet, but prisoners with useful skills were allowed to use them.
The eight days in prison were devoted to a mix of prison maintenance
and production of goods and services. The latter were sold to the
public in the prison courtyard, which functioned as a sort of bazaar,
with sellers of goods and providers of services chained in
place.

The interesting question for our purposes is
whether this elaborate system of slave labor showed a profit, or at
least covered most of its costs. Nobody seems to have worked out the
relevant accounts, but there is indirect evidence. While the French
state exploited the labor of its galley slaves, it made little
attempt to exploit the labor of the much larger number of prisoners
not sentenced to the galleys. If the galley slave system had been a
clear success, it is hard to believe that the 18th century French
state, perennially short of cash, would not have applied a similar
approach to the rest of its prison population, or at least to as much
of it as was in reasonably good physical condition.

A second piece of evidence comes from the role
played by galley slavery in the history of
imprisonment.[50]
At about the end of the 15th century, Mediterranean states with
galley fleets began using condemned prisoners as
oarsmen.[51]
In some cases, states without galley fleets commuted capital
sentences in order to provide rowers for the fleets of their
Mediterranean allies. The result was a substantial shift away from
capital punishment in favor of one specific form of
imprisonment-galley slavery.

That sequence of events suggests that rowing a
galley was a job particularly well suited to prisoners-sufficiently
so to convert imprisonment from a punishment less efficient than
execution to one more efficient than execution. There are at least
two obvious reasons why that might have been the case. One is that
galley labor is relatively easy to supervise. Since the oarsmen are
all rowing together under the observation of a free officer, any
slacking will be immediately obvious and can be immediately
punished.[52]
The other is that it is difficult for a chained prisoner to escape
from a galley at sea.

I conclude that galley slaves, used to row galleys
at a time when galleys were still militarily useful, probably
produced services worth more than the cost of guarding and
maintaining the slaves, but that in other employments France, like
England, found that prisoners cost more than they could be made to
produce.

If, as these arguments suggest, imprisonment had a
positive cost, the next question to ask is how that cost compared
with what the British government was willing to pay for other
punishments. We can get some evidence on that from the history of
transportation. One reason the 17th century experiment with
transportation failed was that the government was unwilling to pay
for it. The second experiment, begun in 1718, succeeded, in part
because the government provided a three pound per convict subsidy to
help cover the cost of transportation. That suggests that the amount
the government was willing to pay for transportation reached three
pounds per transportee in about 1718.[53]

Three pounds per transportee was a one-time cost,
in exchange for which the transportee was removed from England for at
least 7, in many cases at least 14, years.[54]
I have no figures for the cost of prisons in England, save the very
high figure for confinement of prisoners in hulks during the American
Revolution. But the cost per prisoner at one of the contemporary
French prisons was the equivalent of about four pounds sterling
(75-79 livres tournois) a year.[55]
That suggests that imprisonment cost substantially more than the
English state was willing to pay.

One further element in the pattern of punishment
in England in the 18th century is implied by the conclusions of Part
III above. Punishments for serious crime were not limited to
execution and transportation. There was also the possibility of a
payment, in cash or kind, worked out between criminal and prosecutor.
The punishments provided by law were default outcomes, providing the
background against which such bargaining occurred. A fine is a
relatively efficient punishment, since what one party loses another
gains. The legal punishments of transportation and hanging were less
efficient than fines but still more efficient, and less costly to the
state, than imprisonment.

Part V:
Pardons

There is one further oddity in the pattern of
punishments in 18th century England that I have not yet discussed:
the extensive use of pardons. In Beattie's study of Surrey between
1660 and 1800, he found that only about 40% of those convicted of
capital felonies were actually executed. For many of the rest,
especially after 1718, a pardon was conditional on transportation.
But for some, the pardons were unconditional. Having been charged,
jailed, tried, convicted, and jailed again while waiting execution,
they were released.

Pardons seem sometimes to have been used to
correct what the judge regarded as an erroneous verdict. But in most
cases, guilt was not the issue. The pardon was based on character
evidence about the defendant, offered either during the trial or in
later petitions. In some cases petitions came from people who knew
the defendant and could provide information on how likely he was, if
pardoned, to reform. In others what qualified the petitioner seems to
have been not his personal knowledge of the defendant but his
influence over the officials who decided which defendants were to
receive royal pardons.[56]

There are at least three different, but not
inconsistent, functions that the system of pardons may have served.
The most obvious is as a device for avoiding unnecessary punishment
costs. If the experience of being jailed, tried, convicted, and
almost hanged is sufficient to discourage this particular defendant
from any future crimes, then execution serves no incapacitative
function. If the defendant is unlikely to reform in England but has
better prospects in the harsher environment of the New World, then
transportation may be a better punishment than execution. And if most
potential criminals who are similar to this defendant can be deterred
by something less than a certainty of being executed if convicted,
then by pardoning some of them, with or without transportation, the
state reduces punishment cost substantially at only a small price in
deterrence.[57]
Similar arguments can be used to justify judicial discretion in
sentencing in a modern court system.

A second function that such a system might serve
is measuring and taking account of the negative externalities imposed
by execution. Hanging almost always imposes a large cost on the
person most directly affected-that is one of the reasons for hanging
people. It may also impose substantial costs on others: friends,
relatives, employers, and taxpayers potentially responsible for
supporting the criminal's dependants. Those costs serve little
deterrent function. If many such people are willing to go to some
trouble to testify in favor of the criminal at trial or petition for
a pardon, that is evidence that such costs are substantial, and so a
reason for avoiding them by pardoning the convict.

So far I have assumed that pardons are based on
information the court system receives about the prisoner. An
alternative way of looking at them is as a good sold on a market. A
petition from the convict's employer might provide information about
the character or productivity of the convict. A petition from a
politically influential nobleman, who might never have met the
convict and was most unlikely to know him, provided no such
information, at least not directly. Yet such a petition would
probably have more effect on the outcome of the case than one from
the convict's closest friends.

Imagine that you are an ordinary Englishman who
wishes to save the life of a friend convicted of a capital felony-say
sheep stealing. One way of doing so is to go to some high status
person you know, perhaps the local squire, and ask him to intervene
on your friend's behalf. If he does so, it will be as part of an
exchange of favors. Low status people sometimes have opportunities to
benefit high status people, and you have implicitly committed
yourself to do so-whether by being suitably deferential to the squire
in public or by supporting the parliamentary candidate he
recommends.

The local squire has more influence with the
authorities than you do, but not enough to save a convict from the
gallows. He accordingly writes to a politically influential local
peer, requesting him to intervene in behalf of one of the squire's
people, a worthy young man led astray by bad companions. Here again,
the exchange is not primarily of information but of services. One of
the things that makes local peers politically influential is the
support of local squires.

The court, by considering and acting on such
petitions, is implicitly offering the convicted felon a choice
between a fine and execution. The fine is paid not by the felon but
by his friends,[58]
and takes the form not of money but of favors. It is paid, possibly
through intermediaries, to people who can influence the granting of
pardons. To the extent that those paying the fine are in a position
to prevent their friends from committing felonies, such a system
gives them an incentive to do so. It then functions as a collective
punishment, similar to those observed in some primitive legal
systems, where fines are paid not by the offender alone but by other
members of his kinship group as well.[59]

Pardons procured in this way substitute an
efficient punishment-a fine-for a less efficient
punishment-execution. In doing so, they provide resources to the
state and those who control it. Officials who give out pardons are
selling them for non-pecuniary payments. Thus the legal system, in
addition to providing a mechanism to reduce crime, also increases the
ability of the state to maintain its authority. Considered from the
standpoint of public relations, it is an elegant way of doing so.
Nobody is threatened save the guilty convict. The squire is not
oppressing his tenants but doing them a favor, at their request. The
knowledge that such favors may occasionally be needed gives everyone
in the village an incentive to be polite to the
squire.[60]

Part VI: Conclusions

I have attempted to show that the institutions
used in 18th century England to discourage serious crime may have
been well adapted to that purpose. The preference for extreme
punishments reflected the greater cost of the obvious intermediate
punishment, and was relaxed as the society became richer. The system
of private enforcement worked both because deterrence could be
produced as a private good and because compounding provided an
incentive to prosecutors and a punishment for criminals. We do not
know enough about the available alternatives to say whether the
institutions chosen were the best possible. But there is evidence
that they functioned reasonably well-better than one would expect
from the arguments usually offered against them.

While I have offered a defense for these
institutions, some puzzles still remain. One is the difference
between France and England. While England depended heavily on capital
punishment for serious offenses, France made much larger use of
imprisonment. It is tempting to see this difference in punishment as
somehow associated with the different systems of criminal
prosecution: private prosecution in England and public prosecution in
France. Perhaps in England the role of intermediate punishment was
being filled by the out of court settlement. The exploration of such
a conjecture would require both a better analysis of the underlying
theory and a better analysis of the data than I have provided. It
would be interesting to compare crime rates and conviction rates in
the two countries, insofar as they can be extracted from very
imperfect data.

Another puzzle worth exploring is the use of
imprisonment in England for minor offenses-the relation between the
existence of the workhouse and the bridewell and the non-existence of
the penitentiary.[61]
One possibility is that such imprisonment was at positive cost, but
that communities were willing to bear such costs in order to deal
with people whom they were unwilling, for moral or legal reasons, to
execute. Another is that the cost of guarding vagrants was enough
lower than the cost of guarding potentially violent criminals to
reduce or eliminate the net cost of imprisonment.

Appendix A: Is Private Prosecution
Efficient?

Does the production of deterrence as a private
good leads to an efficient level, a more than efficient level, or a
less than efficient level of deterrence?[62]
When I commit myself to prosecute those who commit crimes against me,
do I on net make other people better off (positive externality),
worse off (negative externality) or leave them on net unaffected (no
externality)?

It is useful to start by considering the nature of
the supply curve for offenses-the rate at which offenses are
committed as a function of the expected punishment. Assume,
initially, that the supply of offenders is perfectly elastic: If
offenders can make an expected wage, net of punishment cost, of more
than some critical value W there will be an unlimited number willing
to take up a life of crime, if they make less than W, there will be
none. Does such a perfectly elastic supply of offenders imply a
perfectly elastic supply of offenses?

It does not. Even with an unlimited supply of
thieves, there is still a limited supply of targets-objects worth
stealing and inadequately guarded. If there are only a few thieves,
they can limit themselves to stealing from unlocked houses with piles
of gold coins visible through the window. As the number of thieves
increases,[63]
the attractiveness of the marginal target decreases. The gold is
either well hidden and protected by a stout door or already stolen.
The amount of theft will increase until each thief is making a net
wage of W, at which point the market for theft will be in
equilibrium. Targets whose attractiveness to thieves is above some
cutoff Ao get stolen from; those below that level do not.

Imagine, in this world, that some of the targets
disappear-perhaps because their owners have constructed very high
walls. With fewer targets and the same number of thieves, the average
wage from theft declines. Since the supply of thieves is perfectly
elastic, individuals leave the profession until the wage is back up
to its old level. At that point they are again stealing from all
targets with attractiveness greater than Ao and only such targets. So
the protection of one set of targets neither benefits nor harms the
owners of other potential targets of theft.

The attentive reader will realize that I have made
a number of implicit assumptions in reaching this result. One is that
thieves know which targets are no longer available, and need not
waste time checking them out. If that is not the case, the new walls
confer a benefit on other targets by making it more costly to find
them.

This assumption is appropriate for the form of
protection I am considering-joining an association for the
prosecution of felons. The membership of the association is published
in the local newspaper. As long as thieves are-or know -local
citizens who read their local papers, they can cheaply and easily
cross off their list targets owned by members of the
association.

Joining such an association does not reduce theft
to zero. Occasionally a member's property will present a target
attractive enough to be worth robbing despite the risk. Imagine that
such a theft occurs, and the perpetrator is caught, convicted, and
executed. One consequence is that he will never steal from anyone
else. It seems that in this case, at least, the potential victim who
committed himself to prosecute has provided an external benefit to
other potential victims.

But I have been assuming, so far in the argument,
a perfectly elastic supply of thieves. If that is the case,
incapacitation is of no value. If one thief disappears, to be hanged
at Tyburn or transported to Georgia, another will take his place.
Thus prosecution provides no external benefit.

What about the effect of such private deterrence
on the welfare of thieves? One might expect an increase in the
probability that thieves will be convicted, or a decrease in the
number of attractive targets of theft, to make thieves worse off.
But, under our present assumptions, that conclusion would be
mistaken. A service in perfectly elastic supply earns no rents.
Potential thieves face an opportunity cost of W for their services;
that is why they are willing to become thieves only if their net wage
is at least W. When some victims commit themselves to prosecute, some
thieves switch to their (equally attractive) alternate profession,
and the remaining thieves earn the same wage (net of expected
punishment costs) as before. So, if the supply of thieves is
perfectly elastic, deterrence produced as a private good through
associations for the prosecution of felons results in neither
positive nor negative externalities, and is therefore produced in the
optimal quantity.

Now suppose we drop the assumption of a perfectly
elastic supply of thieves. Our result changes in three ways. When one
owner protects his property, the reduction in the number of
attractive targets means that some of the thieves least well
qualified for the profession leave it. The new marginal thief is now
better qualified for theft than the old, either because he is more
skilled or because his other alternatives are worse. Since the
marginal thief is better, he is willing to accept less attractive
targets, so the attractiveness of the marginal target, the target
just worth stealing, is lower than before. Other property owners are
worse off as a result, since more of their property is now
sufficiently attractive a target to be at risk. The thieves are worse
off as well, since the gain to the inframarginal thieves is lower
than before. The effects on both other property owners and thieves
are negative externalities from private deterrence.

On the other hand, if the supply of thieves is not
perfectly elastic, incapacitation matters. All of the best potential
thieves are already stealing, so when some of them are hanged or
transported, their replacements are less skilled or have higher
opportunity costs. Private deterrence now produces a positive
externality in the form of incapacitation. With both positive and
negative externalities of unknown magnitude, the net effect is
indeterminate.

How plausible is the assumption that the supply of
offenders is perfectly, or at least highly, elastic? One argument in
favor might be that theft is not a very skilled profession, that
there were a lot of unskilled workers in 18th century England, and
that most of them were not thieves. One argument against might be
that many of those workers had consciences, and the lack of a
conscience was an important qualification for being a thief. An
alternative argument against might be that many of them had
reputations and were therefore subject to substantial reputational
penalties if caught.

Do we have any evidence? I doubt that the data
exist necessary to produce an econometric estimate of the elasticity
of supply. But we can deduce from the behavior of contemporaries
something about their beliefs on the subject.

Some, but not all, associations for the
prosecution of felons had rules permitting them to prosecute offenses
against non-members. Occasionally, although not often, they did so.
One would expect such prosecutions to be on behalf of non-members too
poor either to prosecute on their own behalf or to be potential
members, and that seems to have been the case.[64]
By limiting itself to such cases, the association avoided
undercutting its own effort to recruit members. At the same time, it
took advantage of an opportunity to eliminate a criminal who might
commit his next crime against one of their members.

How valuable that opportunity was depended on the
local elasticity of supply for offenders. If it was high, the
criminal would probably be replaced by another. If it was low, he
probably would not be. That such prosecutions rarely occurred
suggests that the elasticity was believed to be high. Of course, a
high local elasticity does not necessarily imply a high national
elasticity-that depends on how mobile thieves are.

So far I have presented the analysis in an
imprecise verbal form. Appendix B provides two formal models. One
corresponds to the verbal analysis above; the second embodies a
different set of assumptions yielding somewhat different
results.

Appendix B: Two Models of
Theft

The issue of whether precautions by one potential
victim injure or benefit other potential victims has been noted
before in the literature, most recently by Hui-wen and
Png.[65]
So far as I know, however, there has been no formal modeling of the
total supply curve for offenses as due to the interaction of
inhomogeneity of potential criminals and inhomogeneity of targets or
of the implications of that relation for the effect of individual
protection. In this appendix, I present two such models, designed to
bring out two different features of the interaction between criminals
and victims.

Model 1: Casing the Joint

A criminal opportunity has a location in time and
space. The door of a particular building happens to be unlocked from
1 P.M. to 2:30 P.M. It has a net value, a return that a thief may
expect to make by exploiting that opportunity. The value depends on
what is available to steal, the barriers that must be overcome, the
probability of detection during or after the commission of the theft,
and the expected consequences. I assume that, for a given location,
the starting time, duration, and value of opportunities are random
variables with publicly known distributions. For simplicity, I assume
that no opportunity has a duration of more than 24 hours.

A potential criminal c may case a
joint-check to see whether a criminal opportunity is currently
available-at a cost Cc which depends on the
characteristics of the criminal. Due to time constraints, a single
criminal can case only a fixed number N of joints per
day.[66]
If there is only one criminal and he is casing a joint j
no more than once a day, he receives an expected return from doing so
of <Rj>max . By making his visits at
least 24 hours apart, he guarantees that he will never discover an
opportunity that he himself has already exploited on a previous
visit. More generally, his return will be
<Rj>(tj), where tj is the
interval between visits; <Rj>max =
<Rj>(24). For tj<24 hours,
<Rj>(tj) is an increasing function of
tj. The more often the target is visited, the more likely
it is that an opportunity that would otherwise be available has
already been exploited.

Now assume a population of such criminals. A
criminal has no property rights to his target-a competitor who cases
the same joint may find and exploit a criminal opportunity first. The
average time between visits for a particular target, tj,
will depend on decisions by all criminals, not just one. As long as
<Rj>(tj) is higher for one target than
for another, it pays criminals to shift their attention to the more
attractive alternative. So in equilibrium, all targets that are being
cased yield the same return, <R>. Any target j for
which <Rj>max < <R> will be
left alone. Any target for which
<Rj>max > <R> will be
visited with a frequency tj such that
<Rj>(tj)=R.

An individual criminal c will case N
joints/day, producing an expected return NR at a cost NCc,
for a net return of N(R-Cc). In equilibrium, all potential
thieves for whom R>Cc will be actual thieves, all for
whom R<Cc will not. We thus have a supply curve for
casing, S(R), showing how many joints will be cased as a function of
R. There is a demand curve for casing, D(R), which represents the
number of casings that must occur in order that the expected return
will be R.[67]
Just as on a normal market, equilibrium occurs at that value of R for
which S(R)=D(R). The marginal thief has Cc=R, and earns no
rent from theft; the superior thief has Cc<R and earns
rent of N(R-Cc)/day.

Suppose, as in Appendix A above, that we assume a
perfectly elastic supply of criminals: Cc=C for all
c . We then have R=C. The expected return does not depend
on the distribution of targets. Just as on an ordinary market, a
perfectly elastic supply curve makes the market price independent of
the demand curve. The argument of Appendix A above then goes through.
An individual who lowers <Rj>(tj) for his
target j , whether by building a wall or joining an
association for the prosecution of felons, neither increases nor
decreases the risk to the owners of other targets. For the reasons
given earlier, incapacitation provides no benefit under these
assumptions; criminals receive no rents from their activities so
their welfare is unaffected by the reduction in the number of
targets.

Dropping the assumption of a perfectly elastic
supply of criminals alters the results as already described. The
owner of a target who makes it less attractive shifts D(R) to the
left. R falls to some R'<R. Fewer casings are occurring, marginal
thieves have left the market, and the quality of the thieves now just
on the margin between stealing and going straight is higher. All
targets for which <Rj>max >R' get
cased, with a frequency sufficient to make
<Rj>(tj) =R'. So some targets that were
before safe are now being cased, and targets that were already being
cased are now cased more often. Protective actions by one owner make
other owners worse off. In addition, the remaining thieves receive
lower rents than before, so they too are worse off.

If, as in the case we have been considering, the
owner protects his property by committing himself to prosecute, there
is now a positive externality from incapacitation. Crimes are
committed by criminals for whom Cc<R. Every time such a
criminal is removed from the market, the supply curve S(R) is shifted
left, raising the equilibrium value of R.

Appendix A provided a verbal sketch of the logic
of private deterrence. I have now filled that sketch out with a
formal model.[68]
Next I will show how a different, and perhaps equally plausible,
model of theft can produce somewhat different results.

Model II: Theft as a
Byproduct

In the model I have just presented, theft is a
full time activity conducted by professional thieves. But, from the
standpoint of economic theory, we are all potential thieves-we differ
only in Cc, the lowest return for which we are willing to
steal. Since each of us, in the course of his daily activities, has a
chance to observe and exploit criminal opportunities, it may not be
necessary to devote time to casing out potential targets.

Each individual is presented in his daily life
with occasional opportunities to steal. Each such opportunity has a
return Ro and a cost, Cc, dependent on the
characteristics of the potential thief. If
Ro>Cc I take the opportunity, otherwise I
remain honest. For simplicity, assume that the net return to theft is
small enough so that such opportunities have a negligible effect on
my ordinary activities. I do not spend fifteen minutes lingering by
the front door of a bank on my way back from lunch in the hope that
someone will leave a pile of gold temporarily unguarded, nor do I
work late in the hope of finding profitable opportunities to gain at
my employer's expense. Criminal opportunities represent rare but
attractive windfalls.

In this world, one opportunity to steal does not
compete with another. When the owner of one target protects it, the
risk to other targets is unaffected. There is, however, an effect on
the welfare of the criminals-the owner's gain is (net of the cost
Cc) their loss.

Whether this is an external loss depends on the
relationship between criminal and victim. The situation I have
described frequently involves employees and employers. If so, the
wage that the employer must pay to secure workers will depend, among
other things, on the expected return from illicit opportunities. This
is the situation generally associated with the idea of "perks" and
disputes over what they are. The costs and benefits involved are all
internal to the employing firm and, assuming away complications of
imperfect information, opportunistic appropriation of sunk costs, and
the like, will lead to efficient decisions.

That will not be true if criminal and victim have
no voluntary relationship with each other. In such a situation, the
precautions of the victim impose a cost on the criminal, so the
victim will, in the absence of other externalities with the opposite
sign, take a greater than optimal level of precaution.

What about externalities associated with
incapacitation, in the case where victims protect themselves by
committing to prosecute? In this model such externalities exist, but
their sign is indeterminate.

The reason the sign is indeterminate is that we do
not know whether those who are incapacitated are more or less likely
to commit theft than those who will replace them in the positions
that provide criminal opportunities. On average, those who commit
thefts are more inclined to do so-have a lower value of
Cc-than those who do not. But incapacitation selects out
not merely those who commit crimes, but those among them who are
caught and convicted. One of the things determining Cc is
how good the criminal is at not being caught.

So the criminals who are removed from the market
are, on average, the less competent among those who commit crimes.
Considered as a sample from those with an opportunity to commit
crimes, the set of convicted criminals is weighted towards low values
of Cc by the fact that they committed the crime-the lower
the value, the higher the probability of finding an opportunity worth
taking-but towards high values by the fact that they were caught. The
net effect depends on detailed assumptions about the distributions of
criminal talents and criminal opportunities.

Linebaugh, Peter. "(Marxist) Social History and
(Conservative) Legal History: A Reply to Professor Langbein." New
York University Law Review 60 (1985): 212-43.

Ruth Paley, "Thief-takers in London in the Age of
the McDaniel Gang, c. 1745-1754," in Hay and Snyder
(1989).

David Phelps, "Associations for Prosecution of
Felons" in Hay and Snyder (1989).

Richard Posner, The Economics of Justice
(1981).

Leon Radzinowitz, A History of English Criminal
Law and its Administration from 1750, Macmillan, NY
1957.

Sir Dudley Ryder, The Ryder Old Bailey
Notes, volume 14 of the transcribed nootbooks, Document no.
19(f), volume 1129 of the Harrowby Manuscripts. Copies of the
typescript of the transcribed notes (expanded from the shorthand
original) are deposited in Loncoln's Inn and the University of
Chicago Law School Library.

Some Considerations on the Game Laws, and the
Present Practice in executing them; with a hint to the
non-subscribers, 1753 (Anonymous pamphlet).